DOJ/ICE Domain Seizures Questioned by U.S. House Members

On August 30th three members of the U.S. House of Representatives sent a letter to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano raising questions about the legality and methodology of the Operations In Our Sites domain seizure program jointly launched by those Cabinet Departments in November 2010. The letter (available at http://lofgren.house.gov/images/Letter_to_AG_Holder_083012.pdf ) was signed by Representatives Zoe Lofgren (D-CA), Jason Chaffetz (R-UT), and Jared Polis (D-CO), all of whom were leaders in opposing the SOPA domain suspension bill that crashed and burned in the House early this year.

Their bipartisan message about the need for adequate due process and transparency is one with which ICA wholeheartedly agrees, regardless of the process used for domain seizure or suspension and whether the allegations against a website involve violations of copyright or trademark law:

Our concern centers on your Department’s methods, and the process given, when seizing the domain names of websites whose actions and contents are presumed to be lawful, protected speech. Without conceding whether your Department has the legal authority to seize these domains under these circumstances, it needs to be given meaningful due process that comports with the U.S. Constitution and U.S. law. To do otherwise risk unjustly suppressing lawful free speech and devastating legitimate businesses that rely on the seized websites. Complaints from several websites, in addition to press accounts, indicate that In Our Sites has resulted in the seizure of domains without sufficient due process and transparency, based on links and content that appear to have been lawfully provided to the sites. (Emphasis added)

The letter cites the shuttering of the Dajaz1 website, which was suspended for more than one year until it was ultimately determined that there was a lack of probable cause for the seizure. The letter also contends that ICE prevented the website operator from obtaining judicial review by arranging for secret, ex parte extensions while copyright holders, including the Recording Industry Association of America (RIAA), were granted additional time to review website content. The letter also alleges that similar procedural problems have arisen in other seizure cases, and that “the effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures”.

The letter concludes by posing seven separate questions regarding various aspects of the In Our Sites program — including the targeting methodologies, due diligence regarding fair use and DMCA safe harbors, and avenues available to website operators wishing to restore operations. We hope the Departments respond to those questions expeditiously and forthrightly, as the free speech and economic freedom issues raised by widespread U.S. website seizures are important matters for all Netizens.